Wisconsin Supreme Court backs GOP lame duck laws designed to curtail governor, AG’s power

Kaul says legislative Republicans "demonstrated open hostility to the outcomes chosen by Wisconsin voters"

Lame duck warning sign. (GeographBot is licensed under CC BY-SA 2.0

In a ruling that goes against the plaintiffs’ argument that it violates a separation of powers — but  was not at all surprising out of a Wisconsin Supreme Court that has backed nearly every action that Wisconsin Republicans controlling the state Legislature have taken — the high court on Thursday upheld the GOP lame duck laws passed in December 2018. 

Republican legislators gave the Joint Finance Committee the power of approval over Department of Justice case settlements, which Attorney General Josh Kaul has cited as creating hurdles before Wisconsinites can receive justice and making settlements extremely difficult.

Attorney General Josh Kaul at the Joint Finance Committee meeting8/27/19
Attorney General Josh Kaul appears before the Joint Finance Committee on 8/27/19 regarding the lame-duck laws, Act 369

“In grasping at power after the 2018 elections, legislative Republicans demonstrated open hostility to outcomes chosen by Wisconsin voters and made it more difficult for state government to function effectively,” said Kaul in a statement. “Today’s decision leaves for another day a ruling on whether most applications of two provisions undermining the authority of the Office of Attorney General are constitutional, but the ultimate result is inevitable: those provisions will be found to be unconstitutional in nearly all of their applications.”

The lame-duck session has been described by many as ‘power grabs’ because after Gov. Tony Evers and Kaul were elected — but before they took office — the Republican-controlled Legislature and Gov. Scott Walker moved quickly to diminish the incoming constitutional officer. These were powers Walker enjoyed his eight years in office, but Republicans did not want an incoming Democratic governor to have.

Gov. Tony Evers at a virtual news conference on 4/6/20 after he delays the April 7 election. (And before the Wisconsin Supreme Court overturns his order.)
Gov. Tony Evers at a virtual news conference

Evers did not mince words in his response: “We had a race for governor in 2018. I won. Unfortunately, things got off on the wrong foot because Republicans immediately passed a law overriding the will of the people and the election, and they’ve been sour grapes ever since.

“From the lame duck laws and challenging my veto power, to Safer at Home and holding an unsafe election this past April, clearly Republicans are going to continue working against me every chance they get, regardless of the consequences. But I’m not going to let that stop me from continuing to do what I promised I would when I ran for this office—I am going to keep putting people first and doing what’s best for the people of our state.”

But Speaker Robin Vos (R-Rochester), whose was named as defendant in SEIU v. Vos said it was making the branches equal.

“Our state’s founders established co-equal branches of government in Wisconsin,” he stated. “This ruling reaffirms that each branch is equal to the other. This idea runs counter to what the governor and attorney general seem to believe. They deem the executive branch is the most important one and should unilaterally rule over the state.”

“The governor and attorney general can continue to try to work around the legislature and violate laws when doing so, or they can begin to understand that there are checks and balances set forth in our representative democracy, just as the state high court reminded them today.”

In a column written for the Examiner by attorneys Jeffrey Mandell and Douglas Poland last November when an appeals court stopped the Legislature’s arrogation of powers, they described the historic relationship and role of the attorney general as this: 

“Who speaks for the State of Wisconsin in court? Until recently, the answer has always been the Attorney General. Wisconsin voters elect a chief legal officer every four years. Absent extenuating circumstances, the AG represents the state, its officials, and its departments, agencies, commissions, and councils. When the governor or another executive branch official is sued in their official capacity, the AG represents them. 

“When the legislature or individual legislative leaders are sued in their official capacity, the AG represents them, too. And when a private party challenges the constitutionality of a state statute, the AG steps up to defend the law.

“This all makes sense. Part of the AG’s role as chief legal officer is to champion state law, both by enforcing that law when someone violates it and defending that law when anyone attacks it. By tradition, the AG’s work in this respect is nonpartisan.”

Today, the Supreme Court overturned that appeals court ruling with a decision written by Justice Brian Hagedorn. He also upheld another instance of the Legislature inserting itself into previously executive-branch functions by allowing the Joint Committee of Legislative Organization to have the power to review security changes at the state Capitol and to suspend administrative rules more than once. 

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One provision the court struck down, in a separate ruling written by Justice Dan Kelly, would have forced the Evers administration to get clearance from the Legislature before issuing guidance documents — which Republicans had defined so broadly as to include any written advice on rules that come out of implementing legislation that it might include routine emails or general letters sent to the public — possibly thousands of documents. (Although he lost the April election, Kelly remains on the bench until Judge Jill Karofsky is seated in August.)

state Senator Scott Fitzgerald in casual shirt next to a US flag and white porch rail
State Sen. Scott Fitzgerald (courtesy of Fitzgerald for Congress)

Senate Majority Leader Scott Fitzgerald (R-Juneau) applauded the decision in a release: “Today’s ruling is a victory for the Legislature and all Wisconsinites who want to hold government accountable. A rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives.”

As soon as Republicans passed the lame-duck measures, they were challenged in court multiple times. There are still more legal issues pending on the legislative transfer of powers, including a decision expected Friday, according to the Milwaukee Journal Sentinel, on Evers’ use of the partial veto.